No. CIV S-02-2496 FCD GGH P.
February 16, 2006
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. For the following reasons, plaintiff is ordered to show cause why defendant Winters should not be dismissed.
On August 18, 2004, the court ordered the U.S. Marshal to serve process on defendant Winters. On November 9, 2004, service as to defendant Winters was returned unexecuted. The U.S. Marshal forwarded to the court a letter from the Litigation Coordinator at High Desert State Prison (HDSP) stating that HDSP had one employee with the last name of Winters, a Medical Technical Assistant (MTA). The Litigation Coordinator requested that plaintiff verify that this MTA was the person named as the defendant.
On December 2, 2004, the court directed plaintiff to file further information regarding defendant Winters. The court informed plaintiff that process as to this defendant was returned unserved because HDSP stated that it was not clear that MTA Winters was the correct defendant. On December 27, 2004, plaintiff submitted a new USM-295 form for defendant Winters, identifying defendant as "Mr. Winters." On January 26, 2005, the court ordered the U.S. Marshal to again attempt service of this defendant.
On December 19, 2005, service as to defendant Winters was again returned unexecuted. Attached to the documents returned by the U.S. Marshal was another letter from the Litigation Coordinator at HDSP stating,
We are returning this case to you, as we currently or in the past do not have an employee by the name of Counselor Winters. We have a MTA employee by the name of Frank Winters, however in review of the complaint we show no affiliation of MTA F. Winters in this case.
After reviewing the operative complaint, filed October 17, 2003, the court cannot determine defendant Winters' job description. If plaintiff intended to name MTA Winters as a defendant, the court presumes he would have clarified this in the most recently submitted USM-285 form, rather than identifying him as "Mr. Winters."
Plaintiff is ordered to show cause why defendant Winters should not be dismissed based on his inability to provide sufficient information regarding the identity of this defendant.
Accordingly, IT IS HEREBY ORDERED that within ten days of the date of this order, plaintiff shall show cause why defendants Winters should not be dismissed.